COMPETITION COMMISSION OF INDIA
[Case No. 10/2012]
7
rA
Filed by
Iqbal Singh Gumber & Mrs. Hardeep Kaur Informant
Against
(1) Purearth Infrastructure Ltd. & Others Opposite Parties
As Rer R. Prasad (Dissenting)
I do not agree with the majority order for the reasons given below.
The facts of the case are not required to be discussed again as they have
already been discussed in the majority order.
2. The main reason for closing the case is that M/s Purearth
Infrastructure Ltd. was not held to be a dominant player as its market
share was very low and further M/s Purearth was not dominant player in
the real estate in Delhi & NCR. The majority has held that the informants
were not able to produce any record to show the dominant position of the
opposite parity. For this reason the case has been closed by the majority
by an order under Section 26(2) of the Competition Act.
3. I have a different view on this subject. In the Competition Act
dominant position means a position of strength, enjoyed by an enterprise,
in the relevant market in India which enables it to (i) operate
independently of competitive forces prevailing in the relevant market
(ii) affect its competitors or consumers or the relevant market in its
favour. Now in this case the issue is regarding construction of a
Cent--u
mall/commercial complex at r .are, Bara Hindu Rao, Delhi.
Thus, the OP in this case wa Brvice to the informants as
defined under Section 2(u) of itionAct. Service itself includes
a time concept and the delivek bf teis was to be given to the
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informants within a certain period. But till today the construction has not
started. In fact the informants had booked the premises on April 2006
20th
and the entire payment was completed by July, 2008. But instead of
delivery of the shops, even the construction has not been started; The.
question is whether it is a case of abuse of dominance.

4. Under the Competition Act the relevant market defines a market
with reference to the relevant product market or the relevant geographic
market or with reference to both the markets. In this particular case the
construction was to be made over a land area of nearly 66 acres. The
relevant geographic market would therefore be the land area where the
construction was to take place, as the provision of services on this land
was distinctly homogenous and can be distinguished from the conditions
prevailing in the neighbouring areas. The relevant product market means
a market comprising all those services which are considered
interchangeable or substitutable by the consumer. In this particular case
after the informants had booked their space and made the payment then
there could not be any substitution with any other provision of services
because the switching costs were very high. Therefore the informants
became captive consumers of the opposite parties. In this relevant
geographic market the OP i.e. M/s Purearth Infrastructure Ltd. was the
dominant party because it could affect its consumers and even the market
in its favour. It could also operate independently the forces prevailing in
the relevant market because in the relevant geographic market and
service market there was not competition. Therefore the relevant market
in this case would be "service for development of commercial space for a
shopping mall in Central Square, Bada Hindu Rao, Delhi". It is not
necessary that while discussing dominant position, only the market share
of the O.P. has to be looked into. Market share is one of the 12 items
mentioned under Section 19(4) of the Act. In this particular case the
consumers i.e. Information Pr, id'er-s (IP) were totally dependent on
M/s Purearth Infrastructure Lt Sction r9(4)(f) is clearly attracted
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Further the monopoly and dominant position was acquired a result of the
agreement between the OP and the IP. Therefore Section 19(4)(g) is also
attracted. Thus, merely on the basis of market share it cannot beheld
that the OP was not dominant. Further the informant can give the basic
information but it is for the Commission to decide whether there is a case
of abuse of dominance. Moreover under the Section 4(2) of the
Competition Act there would be an abuse of dominant position if any of
the conditions in clauses (a)(b)(c)(d) and (e) are attracted. In this
particular case the information provider could not switch to any other
market without losing money. It appears that it is a case of denial of
market access.

5. Therefore in my view it is a fit case for investigation by the Director
General under Section 26(1) of the Competition Act.